Hooseini v Minister for Immigration & Multicultural Affairs [2001] FCA 78 (7 February 2001)

Last Updated: 14 February 2001

FEDERAL COURT OF AUSTRALIA

Hooseini v Minister for Immigration & Multicultural Affairs [2001] FCA 78

APPEALS - application for an extension of time within which to file and serve a notice of appeal - whether appeal has any prospects of success

Migration Act 1958 (Cth)

IN THE MATTER OF MASOOD NIROOMAND HOOSEINI v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 41 of 2001

STONE J

7 FEBRUARY 2001

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 41 OF 2001

BETWEEN:	MASOOD NIROOMAND HOOSEINI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	7 FEBRUARY 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1) The application for leave to appeal be dismissed.

2) The notice of motion be dismissed.

3) The applicant pay the respondent's costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 41 OF 2001

BETWEEN:	MASOOD NIROOMAND HOOSEINI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	STONE J
DATE:	7 FEBRUARY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 I have before me an application for an extension of time to file and serve a notice of appeal from the judgment of Emmett J, delivered on 1 November 2000. An extension of time is required because the notice of appeal was not filed and served within the time required under the Federal Court Rules. The applicant has pressed on the court the difficulties he has because of his lack of legal assistance and his limited knowledge of the English language. The court is very cognisant that those difficulties are real.

2 However, the applicant has also spoken at length, with the assistance of an interpreter, about the substantive case that he would seek to bring on any appeal. Attached to the application is a draft notice of appeal. Miss Watson, for the respondent, points out that grounds 2 to 7 in the draft notice of appeal deal with matters that were not raised before Emmett J. Therefore, as a matter of law, the applicant is not entitled to raise those matters on appeal. She submitted that, in any event, the grounds in points 2 to 7 seek to review the merits of the Administrative Appeals Tribunal decision, which, under the provisions of the Migration Act 1958 (Cth), this Court is not entitled to review.

3 Ms Watson further submits that grounds 1 and 8 in the draft Notice of Appeal were dealt with correctly by Emmett J. Those grounds are:

1. That the court wrongly construed the Judiciary Act and the Administrative Appeals Tribunal Act as it applied to this case.

8. That the Court should not have treated the Administrative Appeals Tribunal as having made a valid decision.

4 There are two issues with which I am primarily concerned. The first issue is the reason for the delay of over two months in submitting the appeal. Even taking into account the difficulties under which the applicant is labouring, that appears to be an unduly long time. However, like Emmett J at first instance, I do not think that there is any utility in considering whether adequate excuse has been advanced for the failure to lodge the notice of appeal in time. Instead, I base my decision on the prospect of the appeal succeeding.

5 I have reviewed the reasons for judgment of Emmett J and, in my opinion, Miss Watson's submission is correct. His Honour has dealt with the issues put before him in a manner in which I can detect no error. For this reason the appeal, if leave were given to appeal, would, in my view, be doomed to failure.

6 I therefore reject the application for an extension of time to appeal. It follows that the notice of motion, which the applicant has also filed, must be dismissed. That motion sought, among other orders, orders that the respondent be restrained from removing or attempting to remove the applicant from Australia until further order of this Court and that the applicant be released from detention.. Given my view on the substantive application, the notice of motion cannot succeed.

7 The Court orders that the application for leave to appeal be dismissed and that the notice of motion be dismissed. In those circumstances there is no reason why the ordinary rule as to costs should not apply. Therefore, I order that the applicant pay the respondent's costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated: 13 February 2001

Counsel for the Applicant:	The applicant appeared in person, assisted by an interpreter
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	7 February 2001
Date of Judgment:	7 February 2001